Kombo & another v Matano & 5 others (Environment and Land Case Civil Suit 75 of 2021) [2024] KEELC 5034 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a never-adopted consent agreement has no effect, joined the Land Registrar to a Mombasa land dispute, and rejected contempt claims for lack of proof of service.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to call for succession court records
The ELC has jurisdiction to call for and examine the succession cause records because the dispute is one relating to land under Section 13 of the ELC Act
The court held its jurisdiction under Section 13 of the Environment and Land Court Act is not exhaustive and covers any other dispute relating to environment and land. Relying on Republic v Senior Principal Magistrate Shanzu, it held that it is irrelevant where the dispute originated as long as it touches on land. It therefore could call for the succession records to understand the suit's background.
Setting aside the consent of 21st September 2023
No consent order was ever adopted by the court, so there was nothing to set aside; prayers pegged on the consent collapse
The court record showed the consent was never adopted: on 31st October 2023 the court noted consents must be adopted in the presence of all parties, and on 6th November 2023 no parties were present. Since the consent had contractual effect but was never adopted as an order, the court found it need not set aside a non-existent order. All prayers founded on the consent fell away.
Joinder of the District Land Registrar as 7th Defendant
The joinder was allowed because the Registrar issues titles in Mombasa and is a necessary party for complete adjudication
Applying Order 1 Rule 10(2) and the Civicon and Joseph Njau Kingori principles, the court found the Registrar's presence necessary to enable the court to effectually and completely adjudicate on all questions concerning the title transactions over the suit property, and that the Registrar would be best placed to shed light on the dispute.
Contempt of the orders of 26th October 2022
Contempt not proved: no evidence of service of the orders and breach remained unproved assertions
Applying the Katsuri Limited elements and Shimmers Plaza's high threshold, the court found the order was clear but that the Defendants were not represented in court on 26th October 2022, and the Plaintiffs produced no proof of service of the orders or the order of 15th December 2022. Allegations of wilful disobedience were mere unproved assertions, so contempt failed.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
- A suit cannot be compromised without the participation of the parties concerned; a consent must be presented and adopted in the presence of all parties
- The mere fact that land in dispute is the subject matter of a succession cause does not oust the jurisdiction of the Environment and Land Court
- Elements of civil contempt: terms of the order; knowledge or proper notice; breach; and deliberate conduct, proved beyond reasonable doubt
Court orders
#- 1.The Notice of Motion application dated 15th January, 2024 allowed in terms of prayers 8 and 11
- 2.The Notice of Motion application dated 10th March, 2024 struck out
- 3.An order calling for examination the entirety of the Court Records and Transcripts in MSA CM SUCC 416/2018, 417/2018, 418/2018 and 419/2018
- 4.The matter be heard on 18th November, 2024
- 5.Any prayers fashioned around the consent order collapse since no consent order was adopted
- 6.The Defendants are not found in contempt of court orders issued on 26th October, 2022 and any prayer pegged on contempt collapses
- 7.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kombo & another v Matano & 5 others (Environment and Land Case Civil Suit 75 of 2021) [2024] KEELC 5034 (KLR)", Case Analysis (2024). ELC 75 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5034/eng@2024-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.